Bacon v. United States

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING AND DISMISSING IN PART § 2255 MOTION

DAVID
NUFFER DISTRICT JUDGE.

Petitioner
Michael Alexander Bacon seeks to vacate, set aside, and
correct his convictions and sentence under 28 U.S.C. §
2255.[1] He asserts three grounds for relief: (1)
prosecutorial misconduct; (2) ineffective assistance of
counsel; and (3) that the term of his supervised release
exceeds the maximum term allowed by statute.[2] The government
argues that § 2255 relief is precluded for prosecutorial
misconduct and ineffective assistance of counsel because Mr.
Bacon waived his collateral review rights.[3] But the
government concedes that Mr. Bacon is entitled to a
correction of his term of supervised release.[4]

Because
it plainly appears that Mr. Bacon is not entitled to relief
under § 2255 for prosecutorial misconduct and
ineffective assistance of counsel, his § 2255
Motion[5] is DENIED and DISMISSED in part. However,
because the term of Mr. Bacon's supervised release
exceeds the maximum term allowed by statute, his § 2255
Motion[6] is GRANTED in part.

Mr.
Bacon waived his right to seek collateral review on the
ground of prosecutorial misconduct
..............................................................................................................
7

Enforcing
Mr. Bacon's collateral review waiver as to his
allegations of prosecutorial misconduct will not result in a
miscarriage of justice ........... 9

Mr.
Bacon is plainly not entitled to relief under § 2255 for
ineffective assistance of counsel
..................................................................................................................
15

Mr.
Bacon is entitled to a correction of his term of supervised
release ............................ 19

ORDER
.........................................................................................................................................
20

BACKGROUND

On
November 5, 2014, the government filed an
Indictment[7] charging Mr. Bacon with four counts of
Bank Robbery and one count of Credit Union Robbery, all
violations of 18 U.S.C. § 2113(a). A status conference
was subsequently held on June 5, 2015, before Magistrate
Judge Paul M. Warner.[8] The purpose of the status conference was
to determine the impact, if any, that certain federal civil
cases filed by Mr. Bacon had on his Criminal
Case.[9] In particular, Mr. Bacon had initiated a
Civil Rights Action on April 15, 2015, which named the
prosecutor in his Criminal Case as a defendant.[10]

In his
Civil Rights Action, Mr. Bacon alleged the loss or
destruction of evidence favorable to his defense in his
Criminal Case.[11] This evidence consisted of personal
property that was seized by law enforcement at the time of
Mr. Bacon's arrest.[12]

At the
status conference, Judge Warner stated that the issues raised
in Mr. Bacon's Civil Rights Action “could be
styled, if it were in the [C]riminal [C]ase, [as] a
prosecutorial misconduct motion . . . .”[13] Judge Warner
asked Mr. Bacon's counsel whether he had discussed these
issues and their potential impact with Mr. Bacon, and whether
counsel intended to raise them in the Criminal
Case.[14] Mr. Bacon's counsel indicated that
he had many discussions with Mr. Bacon regarding these
matters, and that he did not intend to raise them in the
Criminal Case at that time because the parties were in
settlement negotiations.[15] Judge Warner also asked Mr. Bacon
whether he understood his counsel's strategy and the
potential impact the Civil Rights Action may have on the
Criminal Case.[16] Mr. Bacon stated that he
understood.[17]

Based
on counsel and Mr. Bacon's representations, Judge Warner
indicated that he “d[id]n't see any reason why the
[C]riminal [C]ase shouldn't just go
forward.”[18] The parties agreed.[19] Judge Warner
then stated:

[Mr. Bacon] can pick his places, so to speak. He can pick a
deal, he can pick a trial, he can decide what he wants to
do.[20]

I think Mr. Bacon needs to make a hard decision. It is a hard
decision, by the way, Mr. Bacon, I understand that, but you
need to make a decision.[21]

So I would advise you to listen very carefully to what [your
counsel] tells you. I think he's a good lawyer and I
think he's experienced. And I think that you have some
hard decisions to make, but I don't think delaying the
decision making process is going to help.[22]

Following
the status conference, the parties entered a Plea Agreement
pursuant to Fed. R. Crim. P. 11(c)(1)(C).[23] A combined
change of plea and sentencing hearing was then held on June
29, 2015.[24] At the hearing, Mr. Bacon was sworn and
posed questions in compliance with Rule 11.[25] This included
advising Mr. Bacon of his rights and the consequences of
pleading guilty.[26] The questioning specifically addressed
Mr. Bacon's waiver of rights and limitations in
challenging his conviction and sentence.[27] Mr. Bacon
stated that he had discussed these matters with his counsel
and understood.[28] And he moved forward with his guilty
pleas.[29]

Pursuant
to the Plea Agreement, Mr. Bacon pleaded guilty to two counts
of Bank Robbery and one count of Credit Union Robbery, all
violations of 18 U.S.C. § 2113(a).[30] The Plea
Agreement contained the following representations from Mr.
Bacon:

No one has made threats, promises, or representation to me
that have caused me to plead guilty, other than the
provisions set forth in this agreement.[31]

I have discussed this case and this plea with my lawyer as
much as I wish, and I have no additional
questions.[32]

My decision to enter this plea was made after full and
careful thought; with the advice of counsel; and with a full
understanding of my rights, the facts and circumstances of
the case and the consequences of the plea.[34]

The
Plea Agreement also contained the following waiver of Mr.
Bacon's collateral review rights:

I also knowingly, voluntarily and expressly waive my right to
challenge my sentence . . . in any collateral review motion,
writ or other procedure, including but not limited to a
motion brought under 28 U.S.C. § 2255, except on the
issue of ineffective assistance of counsel.[36]

Based
on his guilty pleas, and consistent with the parties'
stipulated term of imprisonment, [37] Mr. Bacon was sentenced
to a prison term of 80 months.[38] Mr. Bacon was also sentenced
to a 60-month term of supervised release.[39]

Nearly
one year later, on June 27, 2016, Mr. Bacon filed a §
2255 Motion arguing that his convictions and sentence should
be set aside and vacated because of prosecutorial misconduct
and ineffective assistance of defense counsel.[40] Mr. Bacon
also argued that his 60-month term of supervised release must
be corrected because it exceeds the maximum term allowed by
statute.[41]

In
responding to Mr. Bacon's § 2255 Motion, the
government argued that § 2255 relief is precluded for
prosecutorial misconduct and ineffective assistance of
counsel because Mr. Bacon waived his collateral review rights
in his Plea Agreement.[42] But the government conceded that Mr.
Bacon is entitled to a correction of his term of supervised
release.[43]

DISCUSSION

For all
motions brought under 28 U.S.C. § 2255, notice of the
motion must be provided to the government and a hearing must
be held, “[u]nless the motion and files and records of
the case conclusively show that the [movant] is entitled to
no relief . . . .”[44] And “[i]f it plainly appears
from the [§ 2255] motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief, the [examining] judge must dismiss the
motion and direct the clerk to notify the moving
party.”[45]

Mr.
Bacon waived his right to seek collateral review on the
ground of prosecutorial misconduct

Mr.
Bacon argues that his convictions and sentence should be set
aside and vacated because of prosecutorial
misconduct.[46] Mr. Bacon's allegations of
prosecutorial misconduct include:

• the government and its agents failed to preserve and
produce potentially exculpatory and probative evidence that
was seized at the time of Mr. Bacon's arrest;

• the prosecutor had a conflict of interest based on the
filing of Mr. Bacon's Civil Rights Action, which named
the prosecutor as a defendant;

• the government permitted Mr. Bacon to be sentenced to
a term of supervised release that exceeded the maximum term
allowed by statute;

• the government caused prejudicial and unnecessary
delay in bringing Mr. Bacon before the court following his
arrest; and

• the government failed to inform the grand jury that
potentially exculpatory and probative evidence was not
preserved.[47]

The
government argues that Mr. Bacon is not entitled to relief
because he waived his § 2255 rights in his Plea
Agreement.[48]

“Given
the importance of plea bargaining to the criminal justice
system, [courts] generally enforce plea agreements and their
concomitant waivers of [collateral review]
rights.”[49] In reviewing a § 2255 motion after
a defendant has entered a plea agreement that contains a
waiver of collateral review rights, a three-prong analysis is
employed to determine:

(1) whether the disputed [issue] falls within the scope of
the waiver of [collateral review] rights; (2) whether the
defendant knowingly and voluntarily waived his [collateral
review] rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice . . . .[50]

Therefore,
if the disputed issue falls within the scope of the
defendant's waiver and the defendant knowingly and
voluntarily entered the waiver, then the waiver is
enforceable as to the disputed issue, unless the enforcement
of the waiver would result in a miscarriage of justice.

Mr.
Bacon's allegations of prosecutorial misconduct fall
within the scope of his collateral review waiver

“In
determining a waiver's scope, [courts] will strictly
construe [collateral review] waivers and any ambiguities in
these agreements will be read against the [g]overnment and in
favor of a defendant's [collateral review]
rights.”[51]

Mr.
Bacon's collateral review waiver is broad-applying to
“any collateral review motion . . . except on the issue
of ineffective assistance of counsel.”[52] There is no
question that Mr. Bacon's allegations of prosecutorial
misconduct fall squarely within the scope of his waiver.

When
determining whether a collateral review waiver is knowing and
voluntary, courts “examine whether the language of the
plea agreement states that the defendant entered the
agreement knowingly and voluntarily” and whether
“an adequate Federal Rule of Criminal Procedure 11
colloquy” is given.[53]

In his
Plea Agreement, Mr. Bacon expressly represented that he
voluntarily entered the agreement after receiving
satisfactory advice from counsel, [54] with a full understanding
of his rights, the facts and circumstances of the case, and
the consequences of his plea.[55] The Plea Agreement also states
that Mr. Bacon knowingly, voluntarily, and expressly waived
his collateral review rights.[56] Additionally, Mr. Bacon was
given an adequate Rule 11 colloquy at his change of plea and
sentencing hearing.[57] And he affirmatively stated that he
understood his rights and the waivers and limitations set
forth in his Plea Agreement, and that he voluntarily agreed
to plead guilty.[58]

Based
on this record, Mr. Bacon knowingly and voluntarily entered
the Plea Agreement, and he knowingly and voluntarily waived
his collateral review rights.

Enforcing
Mr. Bacon's collateral review waiver as to his
allegations of prosecutorial misconduct will not result in a
miscarriage of justice

A
“miscarriage of justice” occurs only: “(1)
where the district court relied on an impermissible factor
such as race, (2) where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the
waiver invalid, (3) where the sentence exceeds the statutory
maximum, or (4) where the waiver is otherwise
unlawful.”[59]

Mr.
Bacon argues that the second, third, and fourth miscarriage
of justice circumstances apply to invalidate his collateral
review waiver.[60] His arguments are without merit.

Mr.
Bacon's counsel was not ineffective in connection with
the negotiation of Mr. Bacon's collateral review waiver

Mr.
Bacon's § 2255 Motion alleges ineffective assistance
of counsel.[61] But his allegations are
generalized-directed at his counsel allowing him to enter the
Plea Agreement, rather than conducting an adequate
investigation or preparing and raising
defenses.[62] He alleges his counsel failed to seek
dismissal of the Criminal Case based on the government's
delay in bringing him before the court and its failure to
preserve and produce evidence. And he alleges his counsel
failed to object to the prosecutor's potential conflict
of interest.[63] These allegations do not relate to the
negotiation of Mr. Bacon's collateral review waiver, and
they do not suggest that Mr. Bacon's counsel was
ineffective in connection with the negotiation.

It was
not until a Supplemental Reply on his § 2255 Motion that
Mr. Bacon made any assertion regarding his counsel being
ineffective in negotiating his collateral review
waiver.[64]Mr. Bacon asserted that his counsel
advised him that the collateral review waiver would not
prevent him from later raising allegations of prosecutorial
misconduct or due process violations.[65] This
assertion is untimely and not credible.

Mr.
Bacon sought, and was granted leave, “to supplemental
his Reply to make the transcripts of the June 5, 2015 and
April 20, 2016 hearings in his underlying [C]riminal [C]ase
part of the record in this case.”[66] He did not
seek, and was not granted leave, to file a supplemental brief
containing previously unraised factual allegations and legal
arguments regarding out-of-court discussions he had with
counsel. The assertions and argument within Mr. Bacon's
Supplemental Reply were not authorized and are untimely.

Additionally,
Mr. Bacon's assertions regarding his counsel's advice
and his belief that the collateral review waiver did not
apply to his prosecutorial misconduct and due process
allegations are contradicted by the record of his Criminal
Case. At the June 5, 2015 status conference, Judge Warner had
a lengthy discussion with Mr. Bacon and his counsel regarding
Mr. Bacon's options to raise defenses and go to trial, or
to enter a plea deal.[67] This discussion specifically
addressed Mr. Bacon's allegations of prosecutorial
misconduct and due process violations. Mr. Bacon affirmed
that he understood.[68]

Then,
at his change of plea and sentencing hearing, Mr. Bacon
stated he “wanted to do a defense” but decided to
plead guilty after being advised that it “wasn't a
good idea.”[69] He indicated that he had enough time to
think about pleading guilty, and he was sure that it was what
he wanted to do.[70] He affirmed that he was not promised
anything, or threatened or pressured, to get him to enter a
guilty plea.[71] He also stated he understood that by
pleading guilty the government would not have to prove its
case against him;[72] he would not have the opportunity to
call defense witnesses or confront government
witnesses;[73] and his right to appeal and challenge
his convictions and sentence would be substantially
limited.[74] And he affirmed that he had read and
understood the terms of his Plea Agreement, and that he did
not have any further questions.[75]

In his
Plea Agreement, Mr. Bacon represented he understood that he
had the right to plead “not guilty” and have a
trial on the charges against him, and that by pleading
guilty, he would not have a trial of any kind.[76] He
represented that he knowingly, voluntarily, and expressly
waived his rights to appeal and file collateral review
motions.[77] And he represented that he understood
the only exceptions to these waivers are that he could:

• withdraw his guilty plea only if the Plea Agreement
was not accepted, or if he was sentenced to a term of
imprisonment other than 80 months;[78]

• appeal only if his sentence was greater than the
sentence set forth in the Plea Agreement;[79] and

• file a collateral review motion only on the issue of
ineffective assistance of counsel.[80]

Finally,
Mr. Bacon represented that he had discussed the case and his
plea with counsel as much as he wished; had a full
understanding of his rights, the facts and circumstances of
the case, and the consequences of his guilty plea; and that
he did not have additional questions and did not wish to make
changes to the Plea Agreement.[81]

Based
on this record, Mr. Bacon was adequately advised of, and knew
and understood, the scope of his collateral review waiver.
Mr. Bacon made a knowing and voluntary choice to enter the
Plea Agreement and to waive his right to raise defenses in
his Criminal Case and on appeal and collateral review. His
late assertions regarding his counsel's advice and his
misunderstanding of the collateral review waiver's scope
are not credible. Mr. Bacon has simply come to regret his
choice to forego raising defenses in his Criminal Case. But
this regret does not equate to ineffective assistance of
counsel in connection with the negotiation of his waiver of
collateral review rights. Therefore, the second miscarriage
of justice circumstance does not apply to invalidate Mr.
Bacon's collateral review waiver.

The
term of Mr. Bacon's supervised release does not
invalidate his collateral review waiver as to prosecutorial
misconduct

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Mr.
Bacon&#39;s alleges that the government permitted him to be
sentenced to a term of supervised release that exceeded the
maximum term allowed by statute.[82] However, a prosecutor is
not the advocate of a criminal defendant, and is not obliged
to raise arguments or objections on a defendant&#39;s
behalf.[83] Therefore, Mr. Bacon&#39;s allegation
cannot form a basis for invalidating his collateral review
waiver as to prosecutorial misconduct.[84] The third
miscarriage of justice ...

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